Last September, in a case initiated by the Belgian Anti-Piracy Federation (BAF), an Antwerp Court of Appeals ordered two major fixed broadband providers (Telenet and Belgacom) to block access to the Pirate Bay at the DNS level. In November, the BAF sent a letter to other Belgian ISPs, threatening legal action unless they also blocked access to the Pirate Bay.

Earlier this week, a Belgian Internet watchdog group (NURPA) reported that one of the three major mobile Internet providers in Belgium, Base, complied with the letter and voluntarily started blocking access to the Pirate Bay.1 Base denies these reports, but users who try to access the Pirate Bay are served a “stop page” with the following text, in Dutch, French, German, and English: “You have been redirected to this stop page because the website you are trying to visit offers content that is considered illegal according to Belgian legislation.” The only way offered for the owner or administrator of the website to object is via fax.

The EFF points out that the ruling in this Belgium case would appear to conflict with the European Court of Justice ruling in Scarlet v. Sabam, a case that also originated in Belgium. In that case the ECJ ruled that “requiring ISPs to filter traffic over their network violates users’ privacy and their freedom to receive and impart information.” Although the final judgment in this case came after the Belgian ruling, there had already been an opinion by the Advocate General reflecting it.

The Belgian judge, though, deemed the case before the ECJ irrelevant, making a distinction between filtering and blocking. These two types of censorship often appear identical to the end user, but the court argued that they are different technically and legally. Filtering implies the monitoring of traffic in order to remove specific content. Blocking, on the other hand, would only require indiscriminately restricting access to a given domain. The Belgian (Pirate Bay) case concerned (DNS) blocking, whereas the European case concerned filtering. According to the Belgian judge, DNS blocking would not constrain fundamental liberties. But while blocking does not raise as many privacy concerns as filtering does, all other concerns remain very relevant. Without even going in to the dangers of interfering in such an essential component of the Internet, (DNS) blocking access to a website as a whole violates individual freedom to impart and receive information. It also ignores the fact that copyright is not an absolute right and is subject to important exceptions.

In other words, it appears the Belgium court only considered filtering and blocking as potential violations to fundamental freedoms vis a vis the potential privacy problems involved with monitoring traffic for the purposes of censoring, and not with the censorship itself.